"This is a fundamental law relating to the interests of all men and women, second only in importance to the Constitution itself," Chairman Mao Zedong once said. Never before has a law aroused such thoroughgoing national concern in China. Everyone wants their say on the issue, and to voice their personal views, in an attempt to safeguard their own interests. This issue has undergone deep consideration and earnest discussion. The revision of the Marriage Law is now a topic for heated debate.
Why has China decided to modify its current Marriage Law? What is the focus of the proposed revisions? China Internet Information Center (CIIC) invited Yang Dawen, a professor at the People's University of China, and head of the drafting group of revisions to the Marriage Law, to give us his views on this issue.
WHY REVISE THE MARRIAGE LAW?
The first Marriage Law of the People's Republic of China was promulgated on May 1, 1950 and went into immediate effect. This was the first of new China's laws to conform to the features of basic law, and it initiated national reform of the marriage and family structure. Its purpose was to abolish the hitherto feudalistic style marriage and to establish a new democratic marriage order, thereby laying a solid foundation for the eventual transposition to the socialist marriage mode.
Within the Chinese feudal society, marriage and family relations were based mainly on ethical codes. It was not until May 1931, when the Republic of China issued its Family Relatives Section of the Civil Law, that China's marriage and family process made its transition from old to modern times.
The 1950 Marriage Law came as a great shock, as the feudal system of marriage and family it replaced had been in place for thousands of years in China. However, the law has been in need of modification since its promulgation, owing to a lack of relevant detail. Mao Zedong pointed out in several Five-Year-Plan periods that the law should be revised, but owing to contemporary political and social conditions, it remained in its original form.
A deeply rooted, pandemic feudal mentality seriously obstructed the initial implementation of the Marriage Law, necessitating a campaign to put it into practice on a national level. The campaign was successful. However, during the 10 years of the "cultural revolution", old practices came back into force in some areas, and new problems emerged in re-implementing the 1950 Marriage Law. Consequently, a group, headed by Kang Keqing, was set up with the specific aim of revising the marriage law. Two years later, a new marriage law was passed normalizing legislation on marriage.
The 1980 Marriage Law advanced the healthy development of Chinese marriage and the family structure. However, in legal terms, it is still far from perfect. Many areas need further definition. Moreover, the past 20 years have seen enormous changes in society and in the lives of the Chinese people. The Marriage Law devised 20 years ago can no longer meet current needs. It has therefore become a matter of urgency that loopholes in the law be rectified, and that its obsolete stipulations be updated.
In 1990, a book entitled Marriage and Family Issues of Modern China was published, in which exponents of the law put forward systematic suggestions on the revision of the Marriage Law. In 1995, at the Standing Committee of the 8th National People's Congress (NPC), revision of the Marriage Law was included in the legislation plans. The following year, a leading group on revision of the Marriage Law was set up. Revised articles have now been submitted to the 18th session of the Standing Committee of the 9th NPC, but didn’t pass the first examination. In the following two months, two further examinations will be made. It is possible that these revised articles might be approved in March 2001.
NEW ARTICLES TO BE ADDED
Family Relatives Procedure
The present Marriage Law has only a general stipulation about relatives. Such issues as stratum, sphere and categories of relatives are not mentioned, which causes many problems. For example, Taiwan compatriots may come to visit their relatives on the mainland according to their relevant stratum. Since there is no stipulation about relative stratum in the Chinese Mainland Marriage Law, implementation on this level becomes complicated. Another example is the sphere of close relatives. In line with the Civil Procedure Law, the term "close relatives" refers to spouses, parents, children and full brothers and sisters. However, the General Rule of the Civil Law has a different stipulation. According to its guidelines, close relatives include half brothers and sisters, grandparents and grandchildren. Most countries divide categories of relatives into spouses, kinsfolk and relatives by marriage, but China has no stipulation about relatives by marriage. In most countries, relatives by marriage, within a certain sphere, are not allowed to marry. If a foreigner should ask whether, according to the law, a mother-in-law may marry her son-in-law, or a father-in-law may marry his daughter-in-law, we, as Chinese, would be unable to give a definite answer.
China has seen many illegal marriages over the past decades. At this time, articles regarding invalid marriage will be added to the new Marriage Law, to help to define in more detail the marriage system of China. Invalid marriage refers to cohabitation lacking the legal specifications of a marriage. The 1980 Marriage Law sets out conditions and procedures for a legal marriage, but without stipulations regarding penalties for those who violate these conditions and procedures. Invalid marriage definitions and penalties are an important part of the marriage law. An invalid marriage is invalid throughout. The two parties, therefore, have no rights or obligations towards one another. Consequently, there can be no "divorce" in such cases. For example, Article 4 of the 1980 Marriage Law stipulates that a marriage must be based on the willingness of both parties; that one side cannot force the other and that no third party involvement is allowed. This being the case, an arranged marriage is indisputably invalid. However, when a couple who originally formed their partnership in this way decide to part, they use the fact of their arranged marriage as a basis. When they take their case to court, expressing their wish to divorce, pointing out that since their marriage was arranged, it is therefore invalid, a judge will allow them to divorce. But since their marriage is, in theory, invalid, the need for divorce is obviated. So by allowing the couple to divorce, the judge is, in effect, acknowledging the "invalid" marriage as valid. This phenomenon makes a mockery of the authority and gravity of the law! If invalid marriage can be clearly defined, the need for divorce is obviated. Yang maintains that motivations for, legal consequences of, and even the procedures of an invalid marriage should be written into the law.
Stipulations relating to a husband and wife do not apply to invalid marriage, so there is no property division between an invalid couple. However, invalid marriage does not affect the relationship between parents and children. The father and mother within an invalid marriage still have obligations to raise their children. The finalization and passing of this section of the Marriage Law next year will constitute tangible progress in China's Marriage Law.
MAJOR REVISIONS TO THE PRESENT MARRIAGE LAW
Property Between Husband and Wife
According to Yang Dawen, some improvement has been made on this issue of property between husband and wife. This is essential to the issue of marriage and the family in China under a socialist market economy. The matter of property relates to the ownership of property after marriage, including the possession, usage, management, profit emanating from, and handling of a couple's property. In a broader sense, it includes the property settlement, should a couple decide to end their relationship, and the responsibilities of both as regards external debt or profit.
The 1980 Marriage Law stipulates that property gained after marriage belongs to both parties. Husband and wife have an equal share. Under the particular conditions such as marriage to a foreigner, or the remarriage of the parents of either party, the law contains the addendum, "excluding those with an additional agreement." Now that 20 years have passed, property relations within a family have greatly changed and increased in complexity. The economic function of a family unit has increased. Many farmers have undertaken contracted work under the responsibility system, and a large number of individuals have become businessmen or private enterprise owners. To meet the demands of the full scope of family units, the state has decided to give some negotiation rights to couples in order that they may reach agreement on their property. Such an agreement must be within legal boundaries, and not encroach on the interests of any third party.
Since the property relationship between husband and wife is closely connected with external property, such as that related to production, operation, debt and equity, and partnerships, it is essential to ensure secure social trading. For example, if a couple owes a debt to a third person, will the party who originally borrowed the amount pay for it from their own property, or will be it repaid by both parties from their mutual property? Lawyers hope to see a specific definition on this account. Professor Yang suggests that property registration be expedited at the time of registration of the marriage, as this is more applicable to China's national situation.
The main aim in this area is to work out the details for legal bases of divorce. Specific situations within a marriage where divorce is deemed to be applicable will be cited so that the law can be implemented more easily. There are those who believe that the new article, whereby a couple must live apart for two years before they can divorce, has made divorce more difficult. This is not true. "Living apart for two years owing to incompatibility" is only one of the many reasons for divorce, but not the only condition. If one party is maltreated or deserted, why should he or she wait for another two years?
There are others that call for increasing the difficulty to divorce, fearing a higher divorce rate, but a high divorce rate does not necessarily mean the quality of marriage is poor. Throughout thousands of years of feudalism, the divorce rate of China was very, very low. Can we infer that ancient Chinese families were all happy? No.
The increase in the rate of divorces over the past 20 years can be attributed to the following factors. First, with societal development, young people today have far higher expectations of marriage than did their parents. Due to various reasons, people in the past endured their sufferings, but young people today refuse to do so. Though some divorces are based on fundamental ethics, they do not constitute the majority. Second, judges involved in civil affairs today are much younger than in former times. Unlike the older judges, who would try to persuade a couple time and again to stay together, they will grant a divorce after only a few failed attempts at mediation. Although China now has a divorce rate of over 10 percent, it nevertheless has one of the most stable rates of marriage in the world.
No breakthrough has been made in the revisions relating to bigamy, apart from the addition of a few procedures and details. The law reaffirms some prohibiting stipulations, for example, the victim has the right to initiate private, as well as public, prosecution proceedings; and he or she may demand compensation. Some advocate expanding the sphere of bigamy to include extra-marital cohabitation for a specified period of time, or the birth of a child outside of the marriage; and husbands indulging in casual, temporary partnerships. However, as Yang points out, these suggestions are impractical. The Marriage Law does not award legal status to such measures. If cases such as these are treated as bigamy, the implication is that so-called "invalid" marriages are legal. How is this contradiction to be solved? Yang suggests charging such offenders with illegal cohabitation under the Criminal Law.
Protection of Elders' Marriage
At present, parental interference in marriage is decreasing, but the intervention by offspring in their parents' marriage is on the increase. To inhibit this tendency, some revisions have been made, requiring children to desist from interfering, should either of their parents decide to remarry, and to continue to support their parents in the event of their taking a new spouse. This is necessary in the face of the increasing number of elderly, the increase in the average expected life span and the physical needs of elders.
In recent years, family violence has become a major problem in many areas. Cases of divorce and personal injury resulting from family violence are increasing.
Family violence is now formally included in the Marriage Law. The law stipulates that family violence and all forms of maltreatment are prohibited. Formerly, family violence was included in stipulations relating to maltreatment, which includes mental cruelty, refusal to prepare meals or to administer medical treatment, as well as physical violence.
This was singled out as an example of China's willingness to conform to international norms. Since the reform and opening-up policies of 1978, China has participated in international conventions relating to women, such as The Convention for Eliminating Inequality and Discrimination towards Women initiated by the United Nations in 1979. By including the heading of family violence in the Marriage Law our commitment to international obligations is endorsed. The detailed stipulations under this heading include victims of family violence being qualified to turn to public security institutions or people's procuratorates for help, or instituting private prosecution proceedings at the people's courts. Those who have committed a crime within the confines of their family life will be punished according to the Criminal Law.
The Marriage Law will not draw up any new stipulations regarding third parties. If a third party inflicts physical violence on either of the two parties within the marriage, he or she will be punished according to the relevant laws on public safety. If a third party does not violate any law, he or she will be dealt with according to ethical principles.
In conclusion, the revisions to the current Marriage Law are based on precedents arising in the drawing up and implementation of past laws, as well as on international principles of legislation. The revised marriage law must conform to national conditions, to prospective social development and the future of the law itself. We should not only consider the important and thorny current issues, but also the formulation of a system that anticipates future eventualities. In this way, we can expect the execution of law in China to be more systematic and scientific.